that a tort giving rise to damages to property would fall into the same category as one causing the injury to the person.' We take that expression to mean that in cases where the United States or its agents are in possession of and responsible for the operation of a ship operated under a general agency agreement, a tort giving the right to damages for property injury must be redressed by an authorized action against the United States. Such rule, however, would not be applicable where the operation of the vessel is under the control of an independent contractor who, through negligence and failure in the common law duty to use that which he controls so as not to injure others, has caused property damage.
There appears to be authority for holding that where a tug captain in charge of the docking or undocking of a vessel is negligent in the performance of that duty and causes injury to persons or property by reason of such negligence, he is liable in damages, notwithstanding the use of the vessel's power in such movement, or the existence of contracts or other elements affecting the relationship or liability of the owners and operators and their agents, as between themselves.
No pertinent Pennsylvania authorities have been found, nor are those relied upon by the respondents concerning the 'loaning' of employees and equipment, deemed controlling. Several maritime cases however seem to impose liability on the tug owners under the above stated principle. In American South African Line v. Sheridan & Co., 1936 A.M.C. 287, damages were claimed to a vessel being moved from a pier. The vessel was being taken out of the dock into the main channel by the respondent, which had furnished two tugs for such purpose. It was held that the tug owner is responsible for the negligence of the tug master on the bridge of the ship, when the tug master goes upon the bridge knowing the lack of power of the tugs, and notwithstanding the fact that the ship was proceeding under its own helm and power with the assistance of the tugs. The court said that where tugs are supplied with insufficient power to handle the ship, the tug master directing operations from the bridge was at fault for attempting to do what he knew could not be done in safety. The cause of the damage was said to be in the insufficiency of the power of the tugs to hold the ship against the wind and the tide, and the negligence consisted of not having provided a sufficient number of tugs with adequate power. Attempting to do what he knew could not be done in safety would put the tug master in fault. The court also declared that the pilotage clause meant that the tug master was to be judged, in what he did, as the master of the ship would be judged were he directing the maneuver.
Robins Drydock & Repair Company v. Navigazione Libera Triestina, 2 Cir., 1929, 32 F.2d 209, is analogous in many of its facts. The Circuit Court there held that the plaintiff had the burden of proving negligence and was not entitled to a verdict simply by showing that the ship moved ahead contrary to the tug captain's orders. The tug captain's orders and the subsequent movements of the vessel were important, but they did not solely determine the liability; other elements including the conduct of the ship's captain, the cause of the forward movement, and the failure to stop were also to be regarded. The judgment for the defendant ship owner was reversed by reason of facts indicating that the master of the vessel may have been negligent under the circumstances. The case of The Niels R. Finsen, D.C., 52 F.2d 795, involved a collision with a moored barge attributable solely to the careless navigation of the steamship. The towing company as an independent contractor had undertaken through its employees to undock the steamship, and by reason of their negligence was held liable for damages. American Diamond Lines v. McAllister Towing and Transportation Company, 2 Cir., 104 F.2d 670, also holds that one who is under contract to dock or undock a vessel is responsible as principal for the negligence of the agent whom the contractor places on the ship in charge of operations. Such negligence is that of an independent contractor who has taken over the navigation of the ship.
Such authorities are believed to be pertinent as decisions which would be followed by the courts of Pennsylvania and we adopt them in determining the liability of the defendants in this case. In view thereof we find justification in the conclusion that the captains of the tugs Triton and Neptune and each of them realized the difficulties of the joint task of moving the Worth from the slip under the circumstances of this case, and the hazards involved. Although Captain Marvel was nominally in charge of the operation in that he directed the movement from the bridge of the Worth, he was dependent upon the joint aid of Captain Cooper and the vessel under his command in undertaking the task. We believe that Captain Cooper was also responsible with Captain Marvel in testing the known danger and failing to secure additional tug power when they both knew of the difficulties which they faced. By reason of the responsibility of the respective captains in command of the two towing units and their joint contributions to the negligence which resulted in the damage, we are of the opinion that the owners of the tugs became responsible for the negligence of their respective servants. We therefore reach the following amended
Conclusions of Law
1. This Court has jurisdiction of the subject matter and of the parties in this case.
2. The plaintiff's damage to Pier 103 as claimed was caused by the fault and negligence of the defendant Tugboat Neptune Company and the defendant Tugboat Triton Company, and their employees or agents, in that such agents did not secure additional towing services required to move the Worth safely from its dock. Said servants attempted to undock the Worth with inadequate towing facilities under circumstances which led them to believe that such undocking would be difficult and hazardous.
3. The damage to Pier 103 was not caused or contributed to by the plaintiff, its servants, agents, or employees, and the terms of the general agency contract to not affect the liability of Independent Towing contractors to the plaintiff.
4. A decree may be entered in favor the plaintiff and against the defendants Tugboat Neptune Company and Tugboat Triton Company for $ 10,107.47, with interest from January 17, 1945, and costs, and the cause dismissed as to the defendant American-Hawaiian Steamship Company.
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